Madhya Pradesh High Court
Mks Mineral And Marbles A Partnership ... vs Power Grid Jabalpur Transmission Ltd. on 20 November, 2018
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.23737/2018
(MKS Mineral and Marbles vs. Power Grid Jabalpur Transmission Ltd. & another)
Jabalpur, Dated : 20.11.2018
Shri R.S. Jaiswal, learned Senior Counsel with Shri K.K.
Gautam and Miss Rajshree Jaiswal, learned counsel for the
petitioner.
Shri T.S. Ruprah, learned Senior Counsel with Shri
Saurabh Sunder, learned counsel for respondent No.1.
Shri Sudeep Deb, learned Government Advocate for respondent No.2/State.
At the request of learned counsel for the parties, the matter is heard finally.
2. By the instant petition, the petitioner is assailing the order dated 14.09.2018 (Annexure-P-16) passed by the Collector, District Sidhi, considering the objections raised by the petitioner under Section-17(3) of the Indian Telegraph Act, 1885 (for brevity the 'Act, 1885').
3. As per the contention raised by Shri Jaiswal, the order of the Collector, District Sidhi is erroneous for the reason that the Collector has proceeded in the matter considering the fact that the land in question belongs to the State, whereas it is a private land, on which, lease has been granted in favour of the petitioner. Since the basic foundation of order of the Collector is erroneous, therefore, the order of the Collector should be quashed. He further contended that the petitioner has requested two things before the Collector that the respondents may be directed to shift the tower so that the minimum area on the land of the petitioner would be affected and alternatively, the petitioner has requested the Authority to raise height of the tower, which he has mentioned in additional
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W.P. No.23737/2018submission. He further submits that although the Collector has rejected the objections, but there is no foundation for rejecting the same as both the issues relating to technical aspects and no report from the technical experts has been called for by the Collector, therefore, the finding given by the Collector in respect of the issues raised by the petitioner are without any foundation, therefore, erroneous.
4. Per contra, Shri Ruprah, learned Senior Counsel appearing for respondent No.1 submits that the Collector in its order has considered those aspects and in paragraph-5 of its order very categorically observed that as per the statement made by the petitioner before the Collector, both the requests were not possible to be accepted. He further submits that the petitioner has no right to obstruct and restrict the respondents from laying down the power line for which permission has already been granted under the law and almost maximum construction is over. Shri Ruprah further submits that laying down the power line is involved public interest, therefore, an individual cannot prevail over the same. He further submits that the petitioner at the most is entitled to get compensation for the land affected and the Collector can decide the compensation for which the respondents are ready to pay. Shri Ruprah further submits that in view of the instructions taken by the respondent-company, both the requests made by the petitioner are not possible to be accepted. He further submits that whatever maximum height can be given to the high tension line, that has been given by the respondent and no further extension can be done.
5. Shri Jaiswal, learned Senior Counsel appearing for the petitioner relied upon a decision reported in (2009) 16 SCC
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W.P. No.23737/2018743 parties being Managing Director, Ramkrishna Poultry Private Limited vs. R. Chellappan and others.
6. Shri Ruprah, learned Senior Counsel appearing for respondent No.1 has relied upon the decisions reported in AIR 2012 Allahabad 62 parties being Power Grid Corporation of India Ltd. v. Ajay Kumar Gupta and Ors, (2017) 5 SCC 143 parties being Power Grid Corporation of India Limited vs. Century Textiles and Industries Limited and Others and 2010 (4) MPLJ 73 parties being Vijay Ramchandra Agrawal vs. Power Grid Corporation of India Ltd.
7. I have heard the arguments advanced by learned counsel for the parties and perused the record.
8. Before deciding the controversy involved in the present case, necessary facts are required to be taken note of. The petitioner applied for prospecting licence vide his application dated 02.05.2015 over the land measuring 6.340 hectares bearing Khasra Nos.221, 222, 224, 225, 236/1, 237, 238, 251, 253 and 255 of village Khadora, Tehsil Majholi, District Sidhi for extraction of mineral Granite for which, he has taken no objection certificate from various Departments as required under the law. The prospecting licence was granted to him vide order dated 16.07.2015 and he was granted permission to enter upon the area to carry out the prospecting vide order dated 09.10.2015. The prospecting was carried out and a Quarry plan was also submitted by him and accordingly, a Quarry-lease was granted to him vide order dated 16.02.2015 (Annexure-P-1) for a period of 30 years.
9. The respondent No.1/Power Grid Corporation is a Government of India undertaking and is engaged for the work
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W.P. No.23737/2018of providing framework with the distribution and transmission of electricity generated by various generating companies throughout the Country. Respondent No.1 proposed to lay down 765 KV Double Circuit Vindhyachal Pooling Jabalpur to the effect that the line shall be passing through various areas. In this regard, the Collector-cum-District Magistrate, Sidhi issued a public notice on 13.04.2016. As per the petitioner, his land for which Quarry-lease has been granted to him is also affected as the transmission line passes through his land. No land has been acquired for the said purpose but there are guidelines issued by the Government of India, Ministry of Power on 15.10.2015 for payment of compensation to the damages caused in regard to 'right of way' for the transmission line.
10. The petitioner after coming to know about laying down the transmission line over his land where Quarry-lease was granted, made a request for not doing so vide letter dated 05.10.2016 (Annexure-P-5). An application was also moved on 17.05.2017 (Annexure-P-6) to the Mining Officer, Sidhi and also to the Collector, Sidhi. Copy of the same was also given to the Managing Director, Power Grid Corporation of India requesting that the area belonging to the petitioner be excluded as the same has been granted to the petitioner for the purpose of mining and he would suffer a great loss, therefore, he requested for changing the route and laying down the transmission line on some other area. As per the petitioner, if transmission line passes through the land of the petitioner, he would not be able to carry out the mining operation resulted into loss to the Government as no royalty would be paid to the State Government.
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W.P. No.23737/201811. The Mining Officer vide letter dated 05.06.2017 submitted a report to the Collector pointing out that the affected land is full of Granite and its a matter of pride for the district and to carry out the mining operation providing employment to the labourers and if employment is not provided then there would be possibility of their exit for want of employment and accordingly, the Mining Officer has expressed potentiality for carrying out the mining operation but nothing was done by respondent No.1 and also by the Collector.
12. Thereafter, on 23.01.2018, an objection was again preferred before the Collector which was decided by an order dated 06.02.2018 saying that the survey should be carried out and on the basis of the report of survey, objection of the petitioner will be decided. But neither the spot inspection was done nor any such report was submitted. The petitioner submits that mineral Granite is a hard rock and it requires use of explosives and blasting to extract the same but extraction cannot be carried out if transmission line passes through over the land of the petitioner. The petitioner has also submitted a map showing the alternative route available and pointed out that only one tower will be required to install in place of the existing tower and the same will not cause any inconvenience and hardship to respondent No.1 and as per the petitioner, whatever expenses occurred in constructing the new tower, he is ready to bear the same. The Collector not taking note of the same, passed an order on 28.02.2018 (Annexure-P-11). As per the petitioner, the Collector while passing the order not taking note of the alternative routes suggested and available despite the fact that there is a specific provision under Section-17 of the Act, 1885. As per the petitioner, the Court of the Collector has jurisdiction to alter the proposed line if the alternative route
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suggested, is found suitable. Taking note of the power vested with the Collector, an application under Section-17 of the Act, 1885 (Annexure-P-12) was also moved by the petitioner raising objection that respondent No.1 may be directed to shift the route of transmission line by erecting a new tower offering that the expenses occurred will be borne by him. When no order on the application submitted by the petitioner was passed by the Collector then the petitioner has preferred Writ Petition No.6139/2018 which was disposed of vide order dated 21.03.2018 (Annexure-P-13) directing the District Magistrate, Sidhi to decide the petitioner's application expeditiously. The petitioner has also submitted an additional submission before the Collector making alternative prayer that if respondent No.1 is facing any difficulty in shifting the route then it may raise the height of the lowest point of the sag of the transmission lines between two towers and the same would enable the petitioner to carry out the mining operation even by way of blasting. As per the petitioner, the Power Grid Corporation/respondent No.1 has also given an undertaking in writing that if mining operation is carried out by the petitioner, then they will have no objection.
As per the petitioner, before the Collector during the course of arguments, it transpired that the height of the existing electricity supply line can be raised to obviate the alteration of route. The Collector orally instructed the parties to work out the manner of doing it and also work out the total expenses which may occur in it but all of a sudden, the Collector passed an order on 14.09.2018 rejecting the application filed by the petitioner under Section-17 of the Act, 1885 and that order has been challenged by the petitioner in this petition.
13. On the other hand, the respondents filed their reply and stated that neither the route of the transmission line nor
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W.P. No.23737/2018the height of the same can be changed. As per the respondents, there was no occasion for acquiring the land for the said purpose. A Gazette Notification was issued for construction of transmission line, a survey is conducted by the engineers and skilled technicians of the Power Grid Corporation of India. As per the respondents, once the survey team is satisfied that all the minimum safety and statutory standards are followed, a survey report is prepared and only after its approval, area is identified for the construction of tower and as per the respondents, all construction work are over now and only the work of transmission line between two towers has to be laid down. The respondents also apprised this Court that whatever maximum height can be given to the transmission line that has been given and there is no possibility of raising the height further. They submit that the instant line namely 765 KV D/V Vindhyachal Jabalpur Line is directly monitored by Hon'ble the Prime Minister of India. The project worth Rs.1750 Crores and there are other projects associated with the present transmission line running into another Rs.1000 Crores. As per the respondents, the project is of national importance and is involved public interest at large as electric supply has to be made to all over the Country and to various States, therefore, individual interest cannot prevail over the public interest. They submit that 95% of the work is completed and only two towers are remaining. The respondents submit that at the most, the petitioner can claim compensation and the same can be determined by the Collector as provided under Section- 16 of the Act, 1885.
14. Considering the arguments advanced by the learned counsel for the parties and also after perusal of the record although I am not satisfied with the order passed by the
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W.P. No.23737/2018Collector deciding the application filed by the petitioner under Section-17 of the Act, 1885 raising an objection and making request that the respondents may be directed to change the route of transmission line or alternatively raise the height of the transmission line so that the petitioner can carry out the mining operation. There is a force in the contention raised by the petitioner that in view of the provisions provided under Section- 17 of the Act, 1885 when the Collector is an Authority to make an order for altering the proposed transmission line, the Collector should have called the report of the technical experts to find out any possibility whether any alteration is possible or not. The Collector has also not taken note of the report of the Mining Officer but merely because the proposed construction was almost over, he found not suitable to make any alteration.
Not only this, the Collector proceeded in the matter as if the land in question is of Government land whereas, as per the petitioner, the land belonging to him and was a 'Bhomiswami' land and this aspect has not been denied by the respondents but the said fact has also not got ascertained by the Collector. However, during the course of arguments, this Court has asked the respondents whether there is any possibility of accepting the request of the petitioner then the counsel for the respondents after seeking instructions of their engineers and technical experts made a very specific statement that it is not possible for them to accept the request of the petitioner. It is out of place to mention that the project of the respondent is of national importance to benefit the public at large and to all the States through which, the transmission line passes through, therefore, I do not find fit to set aside the order passed by the Collector.
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W.P. No.23737/201815. As also considering the specific statement made by the respondents though the order of the Collector suffers from some irregularities but only for that reason, the same cannot be set aside. As per the view expressed by Hon'ble the Supreme Court in the case of Century Textiles and Industries Limited and Others (supra) in paragraphs 21, 22, 23 and 24 which are reproduced hereinbelow:-
21. It is not in dispute that in exercise of powers under the aforesaid provision, the appropriate Government has conferred the powers of telegraph authority vide Notification dated 24-12-2003 exercisable under the Telegraph Act, 1885 upon the Power Grid. It may also be mentioned that a Central transmission utility (CTU) is a deemed licensee under the second proviso to Section 14 of the Electricity Act, 2003. Power Grid is a Central transmission utility and is, therefore, a deemed licensee under the Electricity Act, 2003. This coupled with the fact that Power Grid is treated as authority under the Telegraph Act, 1885, it acquires all such powers which are vested in a telegraph authority under the provisions of the Telegraph Act, 1885 including power to eliminate any obstruction in the laying down of power transmission lines. As per the provisions of the Telegraph Act, 1885, unobstructed access to lay down telegraph and/or electricity transmission lines is an imperative in the larger public interest. Electrification of villages all over the country and availability of telegraph lines are the most essential requirements for growth and development of any country, economy and the well-being/progress of the citizens. The legislature has not permitted any kind of impediment/obstruction in achieving this objective and through the scheme of the Telegraph Act, 1885 empowering the licensee to lay telegraph lines, applied the same, as it is, for laying down the electricity transmission lines.
22. Powers of the telegraph authority conferred by Sections 10, 15 and 16 of the Telegraph Act, 1885, stand vested in and are enjoyed by the Power Grid. These provisions are reproduced below:
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"10. Power for telegraph authority to place and maintain telegraph lines and posts.--The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across, and posts in or upon, any immovable property:
Provided that--
(a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained;
(b) the Central Government shall not acquire any right other than that of user only in the property under, over, along, across, in or upon which the telegraph authority places any telegraph line or post; and
(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and
(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
* * *
15. Disputes between telegraph authority and local authority.--(1) If any dispute arises between the telegraph authority and a local authority in consequence of the local authority refusing the permission referred to in Section 10 clause (c), or prescribing any condition under Section 12, or in consequence of the telegraph authority omitting to comply with a requisition made under Section 13, or otherwise in respect of the exercise of the powers conferred by this Act, it shall be determined by such officer as the
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Central Government may appoint either generally or specially in this behalf.
(2) An appeal from the determination of the officer so appointed shall lie to the Central Government; and the order of the Central Government shall be final.
16. Exercise of powers conferred by Section 10, and disputes as to compensation, in case of property other than that of a local authority.--(1) If the exercise of the powers mentioned in Section 10 in respect of property referred to in clause (d) of that section is resisted or obstructed, the District Magistrate may, in his discretion, order that the telegraph authority shall be permitted to exercise them.
(2) If, after the making of an order under sub-section (1), any person resists the exercise of those powers, or, having control over the property, does not give all facilities for their being exercised, he shall be deemed to have committed an offence under Section 188 of the Indian Penal Code, 1860 (45 of 1860).
(3) If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10 clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.
(4) If any dispute arises as to the persons entitled to receive compensation, or as to the proportions in which the persons interested are entitled to share in it, the telegraph authority may pay into the court of the District Judge such amount as he deems sufficient or, where all the disputing parties have in writing admitted the amount tendered to be sufficient or the amount has been determined under sub-section (3), that amount; and the District Judge, after giving notice to the parties and hearing such of them as desire to be heard, shall determine the persons entitled to receive the compensation or, as the case may be, the proportions in which the persons interested are entitled to share in it.
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W.P. No.23737/2018(5) Every determination of a dispute by a District Judge under sub-section (3) or sub-
section (4) shall be final:
Provided that nothing in this sub-section shall affect the right of any person to recover by suit the whole or any part of any compensation paid by the telegraph authority, from the person who has received the same."
(emphasis supplied)
23. Section 10 of the Telegraph Act, 1885 empowers the telegraph authority to place and maintain a telegraph line under, over, along or across and posts in or upon any immovable property. The provision of Section 10(b) of the Telegraph Act, 1885 makes it abundantly clear that while acquiring the power to lay down telegraph lines, the Central Government does not acquire any right other than that of user in the property.
Further, Section 10(d) of the Telegraph Act, 1885 obliges the telegraph authority to ensure that it causes as little damage as possible and that the telegraph authority shall also be obliged to pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
24. As Power Grid is given the powers of telegraph authority, Rule 3(1) of the 2006 Rules ceases to apply in the case of Power Grid by virtue of execution clause contained in sub-rule (4) of Rule 3 which reads as under:
"3. (4) Nothing contained in this rule shall effect the powers conferred upon any licensee under Section 164 of the Act."
Thus, the order of the Collector cannot be set aside and the respondents cannot be directed to reconsider the suggestions made by the petitioner for changing the route of transmission line or for raising the height of the same.
16. The petitioner has placed reliance in the case of Managing Director, Ramkrishna Poultry Private Limited (supra) but the said case is not applicable in the present case as the facts of the present case is altogether different than that
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W.P. No.23737/2018of referred case. The Supreme Court has considered the nature of the loss causing to the birds in the poultry farm due to passing through the transmission line over the poultry farm and also considered the possibility of raising the height of the transmission line but here in this case, there was no possibility of raising the height as stated by the respondents and even there is no such situation exists that merely because transmission line is passing through over the land leased out to the petitioner, no mining operation can be carried out.
17. As per the respondents, there is a clause contained in the Quarry-lease that there would be no blasting for extracting the mineral, however in the order passed by the Collector on 14.09.2018, he has suggested that in case blasting would be required, the same can be done with the permission of the Regional Inspector of Mines & Safety. Even though, the respondents had admitted that if any damage is caused to the petitioner then they are ready to compensate the same. Therefore, instead of setting aside the order of the Collector, this Court is of the opinion that the petitioner be set free to approach the Collector for claiming the compensation as per the provisions of Section-16 of the Act, 1885 (as already quoted above). On the same being done, the Collector, shall decide the same by giving a proper opportunity to the parties concerned taking note of the guidelines issued by the Government of India, Ministry of Power as referred by the petitioner as per Annexure-P-4 and also the instructions issued by the State Government on 11.05.2017 to all the Collectors. The petitioner is set at liberty to submit his claim before the Collector, Sidhi claiming compensation as per the mining plan approved by the State Government and the Collector shall
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W.P. No.23737/2018decide the same within a period of six months from the date of submitting the claim of compensation by the petitioner.
18. Accordingly, this petition is disposed of with the aforesaid terms giving liberty to the petitioner to claim compensation for the damages, if any, caused to him. The respondents are also permitted to complete their project by laying down the transmission line as per their proposed plan.
19. Petition is accordingly, disposed of.
Parties shall bear their own cost.
(SANJAY DWIVEDI) JUDGE ac/Devashish Digitally signed by DEVASHISH MISHRA Date: 2018.11.26 16:50:19 +05'30'